President Issues Executive Order Targeting H-1B Visa Government Contract Workers

In a series of executive orders, President Donald Trump has restricted the use of H-1B workers. 

• A Presidential Proclamation restricts the entry into the U.S. of foreign nationals working under an H-1B status until at least the end of 2020.
• The United States Citizenship and Immigration Services (USCIS) has previously conducted unannounced worksite visits to ensure H-1B compliance.  These visits will now be conducted by the Department of Labor (DOL), which is charged with increasing the number of investigations.  It is anticipated that this will lead to increased penalties for violations, including awards of back pay for wage errors.
• The most recent Executive Order requires the U.S. Department of Homeland Security and Department of Labor to conduct “more robust examinations” of employers’ H-1B usage.  secretaries of Labor and Homeland Security have 45 days to adopt any measures necessary to ensure that federal-contractor companies employing H-1B workers, including firms placing foreign citizens in other companies, abide by a legal requirement that they not give hiring priority to H-1B visa holders.

The DOL noted that a direct employer of an H-1B worker must file an attestation that hiring the foreign citizen won’t adversely affect similarly situated U.S. workers. But companies where those foreign workers are placed do not have to make such an attestation. The executive order is aimed at ensuring that ‘secondary employers’ — outsourcers — adhere to the H-1B attestations as though they are direct employers of the client.

Under the Executive Order, federal agencies must report within 120 days whether in fiscal years 2018 and 2019 their contractors or subcontractors used temporary foreign labor, and if so, they must indicate the work assignment and whether opportunities for U.S. workers were affected.  Each agency head must also report whether contractors and subcontractors performed services overseas that had previously been done in the U.S., and whether that affected U.S. workers.

The H-1B, intended for jobs requiring specialized skills, is heavily used by the Country’s leading technology firms, which have pushed to expand the annual 85,000 cap on new visas, arguing they need more of them to secure the world’s top talent. Most of these firms have extensive contracts with the federal government and also obtain workers from staffing and technology firms.  Critics point to alleged abuses by contracting companies and outsourcers, and charge that these firms and major tech companies use the H-1B to supplant U.S. workers, drive down wages and facilitate outsourcing.